BILL NUMBER: SB 1250	CHAPTERED  07/14/99

	CHAPTER   121
	FILED WITH SECRETARY OF STATE   JULY 14, 1999
	APPROVED BY GOVERNOR   JULY 14, 1999
	PASSED THE ASSEMBLY   JUNE 30, 1999
	PASSED THE SENATE   MAY 13, 1999

INTRODUCED BY   Senator Escutia

                        FEBRUARY 26, 1999

   An act to amend Section 1202.4 of the Penal Code, relating to
restitution.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1250, Escutia.  Restitution.
   Under existing law, a person convicted of a crime is required to
make restitution to any victim in the amount of the economic losses
suffered by a victim as a result of the criminal conduct.  Existing
law additionally authorizes the victim to enforce the restitution
order as a civil money judgment and obtain access to the criminal
defendant's financial records and information regarding his or her
assets.  Additionally, costs incurred under this existing procedure
by the victim in attempting to collect under the restitution order
are recoverable from the criminal defendant.
   Existing law requires the defendant, in any case in which a
restitution order may be entered, to prepare and file a disclosure
identifying all assets owned or controlled by the defendant as of the
date on which the defendant was arrested, as well as other
information relating to the defendant's financial resources.  This
financial disclosure is available to the victim.  Existing law also
makes it a misdemeanor for any defendant to willfully state, on the
required financial disclosure form, any material matter that he or
she knows to be false, unless this conduct is punishable as perjury
or another provision of law provides for a greater penalty.
   Existing law additionally provides that these provisions shall
become operative on January 1, 2000, unless an extension of specific
provisions of former law is granted by the Judicial Council following
an application by the majority of the judges of a court.  The
extension, with respect to the provisions of former law, may be for
any period of time set by the Judicial Council, not exceeding January
1, 2002.
   If this procedure is employed, these provisions of former law
would require, in lieu of the specific procedures summarized above
that would otherwise apply, that a restitution order be fully
enforceable by a victim as if the restitution order were a civil
judgment, and enforceable in the same manner as is provided for the
enforcement of any other money judgment.  The former provisions
require a victim to have access to all resources available under the
law to enforce the restitution order.  Also under these former
provisions, any portion of a restitution order that remains
unsatisfied after a defendant is no longer on probation or parole is
enforceable by the victim pursuant to these provisions, victims and
the State Board of Control are required to notify the court whenever
a restitution order is satisfied, and a restitution order or
restitution fine that was imposed pursuant to a specified Penal Code
provision by the municipal court or by the superior court in a county
where there is no municipal court, may be enforced in the same
manner as a money judgment in a limited civil case.
   In addition under both former and existing law the court is
required to impose a restitution fine and an order of restitution.
The fine must be imposed unless no court finds compelling and
extraordinary reasons for not doing so, and states those reasons on
the record.  In addition, the court is required to impose an order of
restitution in every case in which the victim suffered economic
loss.  The amount of the order must be of an amount sufficient to
fully reimburse the victim or victims for every determined economic
loss incurred as the result of the defendant's criminal conduct,
including specified types of expenses.  For purposes of this
provision, victim is defined to include the immediate surviving
family of the actual victim and to include other specified entities.

   This bill would specify that mental health therapy expenses are
included in the specified expenses to be considered when determining
the amount of economic loss for purposes of imposing an order of
restitution.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1202.4 of the Penal Code is amended to read:
   1202.4.  (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
   (2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
   (3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
   (A) A restitution fine in accordance with subdivision (b).
   (B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
   (b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
   (1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
   (2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
   (c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record.  A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution fine.  Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum.
   (d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two-hundred-dollar ($200) or one-hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime.  Those losses may include pecuniary losses to the victim or
his or her dependents as well as intangible losses, such as
psychological harm caused by the crime.  Consideration of a defendant'
s inability to pay may include his or her future earning capacity.  A
defendant shall bear the burden of demonstrating his or her
inability to pay.  Express findings by the court as to the factors
bearing on the amount of the fine shall not be required.  A separate
hearing for the fine shall not be required.
   (e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
   (f) In every case in which a victim has suffered economic loss as
a result of the defendant's conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by
the victim or victims or any other showing to the court.  If the
amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be
determined at the direction of the court.  The court shall order full
restitution unless it finds compelling and extraordinary reasons for
not doing so, and states them on the record.
   (1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution.  The court
may modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant.  If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
   (2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party.  Restitution payments made
pursuant to this subdivision shall be made to the Restitution Fund to
the extent that the victim, as defined in subdivision (k), has
received assistance pursuant to Article 1 (commencing with Section
13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code.
   (3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
   (A) Full or partial payment for the value of stolen or damaged
property.  The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
   (B) Medical expenses.
   (C) Mental health therapy expenses.
   (D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor.
   (E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution.
   (F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
   (G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
   (H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
   (4) Except as provided in paragraph (5), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered.  This disclosure shall be
available to the victim pursuant to Section 1214, and any use the
court may make of the disclosure shall be subject to the restrictions
of subdivision (g).  The disclosure shall be signed by the defendant
upon a form approved or adopted by the Judicial Council for the
purpose of facilitating the disclosure.  Any defendant who willfully
states as true any material matter that he or she knows to be false
on the disclosure required by this subdivision is guilty of a
misdemeanor, unless this conduct is punishable as perjury or another
provision of law provides for a greater penalty.
   (5) A defendant who fails to file the financial disclosure
required in paragraph (4), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f).  The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (4), and paragraphs (6), (7), (8), and (9) shall not
apply.
   (6) Except as provided in paragraph (5), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court.  The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
   (7) In its discretion, the court may relieve the defendant of the
duty under paragraph (6) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
   (A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
   (B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
   (C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
   (8) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (4) as any of the
following:
   (A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
   (B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
   (C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.

   (D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
   (9) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (4) shall not delay entry of an
order of restitution or pronouncement of sentence.  In appropriate
cases, the court may do any of the following:
   (A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
   (B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
   (C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (4) as
a condition of probation or suspended sentence.
   (g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record.  A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution order, nor shall inability to pay be a consideration
in determining the amount of a restitution order.
   (h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.

   (i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.
   (j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
   (k) For purposes of this section, "victim" shall include the
immediate surviving family of the actual victim.  "Victim" shall also
include any corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.
   (l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
   (m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation.  Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
   (n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required.  Upon
revocation of probation, the court shall impose restitution pursuant
to this section.
   (o) The provisions of Section 13966.01 of the Government Code
shall apply to restitution imposed pursuant to this section.
   (p) (1) This section shall become operative on January 1, 2000,
except when all of the following apply:
   (A) A majority of judges of a court apply to the Judicial Council
for an extension.
   (B) The judicial application described in paragraph (1) documents
the need for time to adjust restitution procedures and practices, as
well as to facilitate judicial education and training in direct
restitution to victims under subdivision (f).
   (C) The Judicial Council grants the extension upon finding good
cause.
   (2) Upon the grant of an extension pursuant to the application of
a court under this subdivision, the provisions of former Section 1214
shall continue to apply with respect to that court.  The extension
may be for any period of time set by the Judicial Council, but shall
not exceed January 1, 2002, in any case.
